ADVOCATES:David M. Porter - for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmanceLisa Schiavo Blatt - argued the cause for the United States as amicus curiae urging reversalLisa S. Blatt - for the United States as amicus curiae, by special leave of the Court, supporting the petitionerLarry W. Yackle - for the American Civil Liberties Union et al. as amicus curiaeMichael E. Moore - for the petitionerPamela Harris - for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmanceRobert L. Hutton - for the respondentSteven R. Shapiro - for the American Civil Liberties Union et al. as amicus curiaeWalter E. Dellinger, III - for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance

Facts of the case

Gary Cone was tried in a Tennessee court for a 2-day crime spree that ended with the killing of an elderly couple. In response to the overwhelming evidence that he perpetrated the crimes, Cone's defense asserted that he was not guilty by reason of insanity. The jury found him guilty. During the sentencing hearing, Cone's counsel cross-examined prosecution witnesses, but called no witnesses. After the prosecutor closed, the defense counsel waived final argument. Ultimately, Cone was sentenced to death. The State Criminal Court denied Cone's petition for post-conviction relief, rejecting his contention that his counsel rendered ineffective assistance during the sentencing phase by failing to present mitigating evidence and waiving final argument. Subsequently, the Federal District Court denied Cone's federal habeas petition, ruling that he did not meet 28 USC section 2254(d)(1)'s requirement that a state decision be "contrary to" or involve "an unreasonable application of clearly established Federal law." In reversing, the Court of Appeals found that Cone suffered a Sixth Amendment violation for which prejudice should be presumed because his counsel, by not asking for mercy after the prosecutor's final argument, did not subject the State's death penalty call to meaningful adversarial testing.

Question

Does defense counsel render ineffective assistance during the sentencing phase of a murder trial by failing to present mitigating evidence and waiving final argument?

William H. Rehnquist:

I have the opinion of the Court to announce in No. 01-400 Bell against Cone.

Twenty years ago, respondent was convicted of and sentenced to death for the murder of an elderly couple in Memphis, Tennessee.

The killings culminated a two-day crime rampage that began when he robbed a jewelry store in Memphis.

A high speed chase ensued.

He abandoned his vehicle, shot a police officer who tried to arrest him and a citizen who confronted him, and tried to shoot another person who refused to turnover his car keys.

Having eluded capture until morning, he drew a gun on an elderly resident who refused to let him use their telephone.

Later he broke into the home of Shipley and Cleopatra Todd, aged 93 and 79 respectively, and killed them by repeatedly beating them about the head.

He altered his opinion, fled to Florida where he was arrested for robbery.

A Tennessee jury convicted him of two counts of first degree murder, three counts of assault with intent to murder, and one count of robbery with a deadly weapon.

The defense’s theory at the guilt phase of the trial was that respondent was not guilty by reason of insanity because he suffered from Vietnam Veterans Syndrome and other disorders related to his elicit drug use.

During opening statement at the penalty phase of the trial, his counsel called the jury’s attention to the evidence of mitigating circumstances already before us, and pleaded for his client’s life.

The State’s witnesses testified briefly about the undisputed facts the respondent had prior felony convictions and was evading arrest.

The junior prosecuting attorney gave a low key closing.

The defense counsel waived final argument, preventing the senior prosecuting attorney who by all accounts was very persuasive from arguing and rebuttal.

The jury found the respondent should receive the death penalty.

The Tennessee Supreme Court affirmed.

On State habeas proceedings, the respondent claimed his attorney rendered ineffective assistance at the penalty phase of his trial by not presenting further mitigating evidence and by waiving closing arguments.

The State Court’s rejected the claim under principles announced in our decision in Strickland against Washington.

Respondent then applied for federal habeas relief.

The District Court held the respondent did not meet 2254(d)(1) standard because the State Court's adjudication of his claim neither was contrary to nor involved an unreasonable application of clearly established federal law.

The Court of Appeals for the Sixth Circuit reversed concluding that respondent’s Sixth Amendment claim should have been analyzed under United States against Cronic.

In an opinion filed with the Clerk of the Court today, we reverse the Court of Appeals.

2254(d)(1) prevents State prisoners from obtaining federal habeas relief, unless the State Court adjudication of their claim either was contrary to or involved an unreasonable application of clearly established federal law.

Respondent’s claim alleging that counsel erred by failing to introduce further mitigating evidence and waiving final argument was properly analyzed under Strickland’s test and was therefore not contrary to our Cronic decision, nor did its analysis involved an unreasonable application of Strickland.

Respondent’s counsel was faced with an extremely difficult task in defending his client.

Having reviewed the circumstances surrounding council’s decision not to call certain witnesses, to waive final argument, we cannot say that it was objectively unreasonable for the State Court to conclude that those decisions were tactical ones about which competent lawyers might disagree.